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INCONSISTENCIES IN TWO FINAL RENT-ADJUSTMENT ORDERS ALLOWED RECONSIDERATION OF THE NATURE OF THE MAJOR CAPITAL IMPROVEMENTS [MCI’S] DESCRIBED IN THE ORDERS.

In a rent-increase matter which was before the NYS Division of Housing and Community Renewal (DHCR), the First Department, over an extensive two-justice dissent, determined a discrepancy between two prior rent-adjustment orders constituted “an irregularity in a vital matter” which allowed the DHRC, on remand, to reconsider the two (final) orders. The discrepancy related to the nature of the “major capital improvement [MCI]” (purportedly justifying a rent increase) to which each order referred. The dissent argued that the two orders were final orders and collateral estoppel prohibited further reexamination of them. Matter of 60 E. 12th St. Tenants’ Assn. v New York State Div. of Hous. & Community Renewal, 2015 NY Slip Op 09599, 1st Dept 12-29-15

ADMINISTRATIVE LAW (RECONSIDERATION OF INCONSISTENT FINAL ORDERS BY NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL)/DIVISION OF HOUSING AND COMMUNITY RENEWAL [DHCR] (RECONSIDERATION OF INCONSISTENT FINAL RENT-ADJUSTMENT ORDERS)

ADMINISTRATIVE LAW, DRIVER’S LICENSES. COMMISSIONER OF MOTOR VEHICLES HAS THE POWER TO DENY RELICENSING TO DRIVER CONVICTED OF DWI WHO HAD TWO SIX POINT SPEEDING TICKETS DURING THE LOOK-BACK PERIOD.

The Third Department, over a dissent, determined the Commissioner of Motor Vehicles, pursuant to the new DWI relicensing regulations, properly refused to relicense petitioner, who had been convicted of three alcohol-related offenses during ten years, based upon two six point speeding tickets during the look-back period. The question presented was whether two five point speeding tickets could properly constitute a “serious driving offense” justifying a denial of relicensing. The majority concluded the relevant regulation was a valid exercise of the Commissioner’s powers. The court noted that the Commissioner has the discretion to grant a license under unusual, extenuating and compelling circumstances, but petitioner did not make an application under that provision:

In the broadest sense, 15 NYCRR part 136 was promulgated to “establish[] criteria to identify individual problem drivers,” that is, applicants for new licenses that “ha[ve] had a series of convictions, incidents and/or accidents . . . which in the judgment of the [C]ommissioner . . . upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways” (15 NYCRR 136.1 [a], [b] [1]). In developing these regulations, the Commissioner considered empirical data, which indicated that drivers with three or more alcohol- or drug-related driving convictions are involved in a disproportionate number of motor vehicle accidents. Accordingly, the Commissioner rationally determined that such drivers “pose the highest risk to the general population” (NY Reg, Mar. 13, 2013 at 43) and, thus, should not be granted new, unrestricted licenses until after a waiting period of several years (see 15 NYCRR 136.5 [b] [3], [4]). With that in mind, we cannot consider the Commissioner’s decision to subject such recidivist impaired or intoxicated drivers to a longer — or even a presumptively permanent — ban on relicensure to be arbitrary when, like petitioner, such drivers may independently qualify as “problem drivers” because of the presence of speeding or other violations on their driving records (see 15 NYCRR 136.1 [b] [1]; 136.5 [a] [2]; [b] [2]).

As for petitioner’s claim that her two six-point speeding violations during the 25-year look-back period are not serious enough to be expressly defined as a “serious driving offense” (see 15 NYCRR [a] [2] [iii]), we defer to the Commissioner’s determination, as it was made pursuant to her discretionary authority (see Vehicle and Traffic Law § 510 [5], [6]), and it was within the area of expertise of the agency she headds … . Matter of Matsen v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09159, 3rd Dept 12-10-15

 

ADMINISTRATIVE LAW (DRIVER’S LICENSES, COMMISSIONER HAS POWER TO DENY RELICENSING A DRIVER CONVICTED OF DWI BASED UPON TWO FIVE-POINT SPEEDING TICKETS)/DRIVER’S LICENSES (RELICENSING OF DRIVER CONVICTED OF DWI CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)/SPEEDING TICKETS (TWO FIVE POINT SPEEDS CONSTITUTE A SERIOUS DRIVING OFFENSE FOR WHICH RELICENSING CAN BE DENIED TO A DRIVER CONVICTED OF DWI)/RELICENSING OF DRIVERS CONVICTED OF DWI (CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)

COMMISSIONER OF MOTOR VEHICLES HAS THE POWER TO DENY RELICENSING TO DRIVER CONVICTED OF DWI WHO HAD TWO SIX POINT SPEEDING TICKETS DURING THE LOOK-BACK PERIOD.

The Third Department, over a dissent, determined the Commissioner of Motor Vehicles, pursuant to the new DWI relicensing regulations, properly refused to relicense petitioner, who had been convicted of three alcohol-related offenses during ten years, based upon two six point speeding tickets during the look-back period. The question presented was whether two five point speeding tickets could properly constitute a “serious driving offense” justifying a denial of relicensing. The majority concluded the relevant regulation was a valid exercise of the Commissioner’s powers. The court noted that the Commissioner has the discretion to grant a license under unusual, extenuating and compelling circumstances, but petitioner did not make an application under that provision:

In the broadest sense, 15 NYCRR part 136 was promulgated to “establish[] criteria to identify individual problem drivers,” that is, applicants for new licenses that “ha[ve] had a series of convictions, incidents and/or accidents . . . which in the judgment of the [C]ommissioner . . . upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways” (15 NYCRR 136.1 [a], [b] [1]). In developing these regulations, the Commissioner considered empirical data, which indicated that drivers with three or more alcohol- or drug-related driving convictions are involved in a disproportionate number of motor vehicle accidents. Accordingly, the Commissioner rationally determined that such drivers “pose the highest risk to the general population” (NY Reg, Mar. 13, 2013 at 43) and, thus, should not be granted new, unrestricted licenses until after a waiting period of several years (see 15 NYCRR 136.5 [b] [3], [4]). With that in mind, we cannot consider the Commissioner’s decision to subject such recidivist impaired or intoxicated drivers to a longer — or even a presumptively permanent — ban on relicensure to be arbitrary when, like petitioner, such drivers may independently qualify as “problem drivers” because of the presence of speeding or other violations on their driving records (see 15 NYCRR 136.1 [b] [1]; 136.5 [a] [2]; [b] [2]).

As for petitioner’s claim that her two six-point speeding violations during the 25-year look-back period are not serious enough to be expressly defined as a “serious driving offense” (see 15 NYCRR [a] [2] [iii]), we defer to the Commissioner’s determination, as it was made pursuant to her discretionary authority (see Vehicle and Traffic Law § 510 [5], [6]), and it was within the area of expertise of the agency she heads … . Matter of Matsen v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09159, 3rd Dept 12-10-15

ADMINISTRATIVE LAW (DRIVER’S LICENSES, COMMISSIONER HAS POWER TO DENY RELICENSING A DRIVER CONVICTED OF DWI BASED UPON TWO FIVE-POINT SPEEDING TICKETS)/DRIVER’S LICENSES (RELICENSING OF DRIVER CONVICTED OF DWI CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)/SPEEDING TICKETS (TWO FIVE POINT SPEEDS CONSTITUTE A SERIOUS DRIVING OFFENSE FOR WHICH RELICENSING CAN BE DENIED TO A DRIVER CONVICTED OF DWI)/RELICENSING OF DRIVERS CONVICTED OF DWI (CAN BE DENIED BASED UPON TWO FIVE POINT SPEEDING TICKETS)

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New Relicensing Regulations Can Be Applied Retroactively (Re: Alcohol-Related Driving Convictions)

The Fourth Department, reversing Supreme Court, determined the Commissioner of Motor Vehicles had the power to retroactively apply regulations re: the relicensing of persons with three or more alcohol-related driving convictions:

… [T]here is no merit to petitioner’s contention that the Commissioner erred in retroactively applying the amended regulations to his application … . “[P]etitioner’s driver’s license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by [the Commissioner] under her discretionary powers . . . Thus, [the Commissioner] remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner’s application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing— i.e., persons with three or more alcohol-related driving convictions” … . Matter of Underwood v Fiala, 2015 NY Slip Op 08545, 4th Dept 11-20-15

 

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Finding that Claimant’s Absenteeism Was Not Disqualifying Misconduct Was Supported by Substantial Evidence; Courts’ Review Powers in this Context Explained

The Third Department determined the board’s finding that claimant’s absenteeism did not amount to disqualifying misconduct (because it was related to his diabetes) was supported by substantial evidence. The court also explained its review powers in this context:

While continued absenteeism, despite previous warnings, may rise to the level of misconduct disqualifying an employee from receiving unemployment insurance benefits …, “termination of employment attributable to symptoms of a diagnosed medical condition will not constitute disqualifying misconduct”… .  Whether an absence is justified so as to remove it from disqualifying misconduct is a factual question for the Board to resolve, and its resolution of this issue will not be disturbed if supported by substantial evidence … .

Here, claimant testified that he suffers from type 1 diabetes and that he experienced a diabetic episode, consisting of shakiness, nausea and headaches, that caused his absence on August 8, 2013. He submitted medical documentation confirming his diabetic condition and indicating that it is being treated but has been “difficult to control.” Although the employer was aware that he was a diabetic, claimant admittedly failed to inform his superiors that he was experiencing health problems related to his diabetes or that this was the cause of his August 8, 2013 absence. The Board, as the final arbiter of factual issues and credibility, was free to credit claimant’s testimony concerning the reason for his absence and was not bound by the contrary conclusion reached by the ALJ … . Pursuant to our limited review, “this Court may not weigh conflicting evidence or substitute its own judgment, and if, as here, the findings turn on the credibility of witnesses, we may not substitute our perceptions for those of the agency” … . Under these circumstances, substantial evidence supports the Board’s determination that claimant’s loss of employment was not due to disqualifying misconduct … . Matter of Suchocki (St. Joseph’s R.C. Church–Commissioner of Labor), 2015 NY Slip Op 07899, 3rd Dept 10-29-15

 

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Courts’ Limited Review Powers Re: an Administrative Determination Made After a Hearing Clearly Explained

In reversing Supreme Court’s annulment of the fire district board’s determination petitioner was not entitled to benefits pursuant to Municipal law 207-a (2), the Second Department explained the courts’ review powers in this context:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” … .  “Substantial evidence means more than a mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” … . “When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207-a determination, a municipality is free to credit one physician’s testimony over that of another'” … . “Thus, even if conflicting medical evidence can be found in the record,’ the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence” … . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 07838, 2nd Dept 10-28-15

 

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Zoning Board’s Determination Lacked a Rational Basis

The Second Department determined Supreme Court properly found the zoning board of appeals (ZBA’s) determination was not supported by the evidence and lacked a rational basis. The petitioners were denied permission to operate a concrete aggregate recycling business in an area where the processing of raw materials was prohibited. The zoning board denied the application on the ground that petitioners were going to process raw materials. However petitioners denied that they would process raw materials and there was no evidence, other than rumor, to the contrary. The court explained the criteria for review of a zoning determination:

“In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion”… . Where, as here, a determination is made by a zoning board of appeals after a public hearing, the determination of the zoning board should be upheld if it has a rational basis supported by evidence in the record (see CPLR 7803[4] …).

* * * The key determination made by the ZBA … was that the petitioners intended to engage in activities that included the processing of raw materials on the site, despite the petitioners’ repeated statements and assurances otherwise. The record is replete with instances where the petitioners disputed, as nothing more than baseless rumor and suspicion, the claim that they intended to engage in activities other than concrete aggregate recycling on the site. The record is also devoid of any evidence supporting the ZBA’s conclusion that the petitioners would engage in activities other than those which were explicitly approved or permitted as of right under the zoning and planning ordinance in force prior … . Matter of Green Materials of Westchester v Town of Cortlandt, 2015 NY Slip Op 07659, 2nd Dept 10-21-15

 

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Loud Argument With Another Teacher In Front of Students Did Not Justify an Unsatisfactory Rating and Discharge of Probationary Teacher

The First Department, over a dissent, determined the unsatisfactory rating (U-rating) for a probationary teacher lacked a rational basis and was arbitrary and capricious. Her termination, therefore, was based upon a deficiency in the review process which undermined its fairness. The U-rating and termination stemmed from a “loud” argument with another teacher in front of students. The majority concluded the evidence about the argument did not support a finding of insubordination and unprofessional conduct. The dissent argued there was a rational basis for the respondent’s rulings and, under the principles of administrative law, the court was powerless to substitute its own judgment:

We hold that the U-rating for the summer of 2011 lacked a rational basis and was arbitrary and capricious. Even accepting the testimony that petitioner engaged in a loud argument with another teacher about sharing a room, there is no rational basis to find petitioner’s conduct was unprofessional, insubordinate or unbecoming. Here, the subject of the argument concerned whether petitioner’s students with disabilities should share space with students that composed the art cluster or obtain a larger classroom. There was no evidence presented that the content of conversation itself was unprofessional. The simple conduct of an argument without more elaboration on how the subject and language of the conversation was unprofessional is insufficient to provide a rational basis for professional misconduct.

As to the termination of petitioner’s employment, it is well established that a “probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law” … . Nonetheless, given the failure to establish a rational basis for the summer 2011 U-rating, petitioner established a deficiency in the review process to terminate petitioner’s employment that was “not merely technical, but undermined the integrity and fairness of the process” … . Matter of Mendez v New York City Dept. of Educ., 2015 NY Slip Op 07599, 1st Dept 10-20-15

 

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Petitioner-Employee Did Not Demonstrate the Union Breached Its Duty of Fair Representation, Therefore Petitioner Did Not Demonstrate an Exception to the “Exhaustion of Remedies” Pre-Requisite for an Article 78 Proceeding

The Second Department determined petitioner’s Article 78 action should have been dismissed because petitioner did not demonstrate an exception to the requirement that she exhaust all the grievance remedies provided by the collective bargaining agreement. Petitioner was terminated from her employment at a county community college:

Generally, an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies … . However, the failure to exhaust administrative remedies may be excused where the employee can prove that the union breached its duty of fair representation in the handling of the employee’s grievance … . Breach of the duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith … . Here, the petitioner did not allege that the union’s conduct was arbitrary, discriminatory, or made in bad faith, and the record does not support such a conclusion … . Accordingly, as the petitioner failed to establish that an exception to the exhaustion doctrine was applicable, the Supreme Court should have denied the petition and dismissed the proceeding on the merits. Matter of McLaughlin v Hankin, 2015 NY Slip Op 07272, 2nd Dept 10-7-15

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Courts’ Limited Review Powers Re: Administrative Rulings Clearly Illustrated

The Fourth Department, in a dispute about whether fiber optic cables were taxable by the city and the school district under the Real Property Tax Law, determined Supreme Court was powerless to rule on the matter on grounds not used by the administrative agencies which initially heard it. The Fourth Department succinctly explained the relevant review powers:

We agree with petitioners that the court erred in dismissing the petition on grounds different from those on which respondents relied in denying the applications. It is well settled that “[a] reviewing court, in dealing with a determination . . . which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Thus, the court was without power to uphold the administrative determinations on a different basis, no matter how sound that basis may be.

Contrary to petitioners’ further contention, however, we may not grant the ultimate affirmative relief requested in the petition, i.e., removal of the subject properties from the tax rolls and a refund of the taxes paid. The Court of Appeals has noted that courts “regularly defer to the governmental agency charged with the responsibility for administration of [a] statute’ in those cases where interpretation or application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom,’ and the agency’s interpretation is not irrational or unreasonable’ ” … . We conclude that “this case involves a question concerning the specific application of a broad statutory term, . . . and therefore is one in which the agency which administers the statute must determine it initially” … , because in such a situation, ” the reviewing court’s function is limited’ ” … . Matter of Level 3 Communications, LLC v Erie County, 2015 NY Slip Op 07104, 4th Dept 10-2-15

 

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